Tuesday 31 January 2012

While the eyes of the world are on Assange and a clash of the titans.....a Scottish female judge boldly goes....





The entire world is apparently going to be watching the Supreme Court decide the fate of Julian Assange (subject to Strasbourg having a go too) tomorrow.  It will see a clash of the titans in Dinah Rose QC taking on Clare Montgomery QC. If two giants of advocacy collide - do they both disappear into a rhetorical black hole?  We will find out tomorrow.  BTW, I was once DRQC's mini-pupil.

More interestingly, there is a female Scottish judge sitting in the Privy Council, Lady Paton - as the second ever female Senator of the the College of Justice - is she the first female Scots judge to sit in the JCPC?

Friday 27 January 2012

Banning Cash Payments for scrap metal....How is that going to be enforced?

Talk about knee jerk legislation on the hoof and in vain....how will HMG police a criminal ban on cash being used in scrap yards?



The Secretary of State for the Home Department (Mrs Theresa May): I am announcing today our intention to lay a Government amendment to the Legal Aid, Sentencing and Punishment of Offenders Bill to tackle metal theft.
The Government consider that legislation is the only sustainable, long-term solution to the growing menace of metal theft. There is an urgent need to make stealing metal less attractive to criminals, and tackling the stolen metal market will act as a significant deterrent.
That is why I can confirm that we will lay amendments to:
create a new criminal offence to prohibit cash payments to purchase scrap metal; and
significantly increase the fines for all offences under the existing Scrap Metal Dealers Act 1964 that regulates the scrap metal recycling industry.
26 Jan 2012 : Column 26WS
Cash transactions for scrap metal are often completed without any proof of personal identification or proof that the individual legitimately owns the metal being sold. This leads to anonymous, low-risk transactions for those individuals who steal metal. In addition, the widespread use of cash facilitates poor record keeping by the metal recycling industry and can support tax evasion activity.
Today’s announcement follows the commitment outlined in the national infrastructure plan published in November 2011 when the Government announced £5 million to establish a dedicated metal theft taskforce to enhance law enforcement activity in this area.
These amendments are part of our wider attempts to tackle all stages in the illegal trading of stolen scrap metal, and we shall bring forward further measures in due course.

Wednesday 25 January 2012

The Legal Aid Debate....

I have been following the Legal Aid debate in the Lords with interest.  They are blessed with a bevy of QCs, Judges and other assorted sages in the law.  I was particularly struck by a proposal to permit confiscated assets to be used to fund representation in criminal cases, rather than legal aid.  QC after QC rose to tell of tales of representing fraudsters (and alleged fraudsters) in criminal trials being paid on legal aid, where part of their brief was to apply to unfreeze some of the restrained cash to pay school fees, but they could not actually get at that money to pay their own fees.  They proposed that the Court would control the amount released from frozen cash to ensure that lawyers did not milk the funds; but all in all this method would clearly reduce the Legal Aid bill.  Apparently the Treasury mandarins are worried that the lawyers would steal all the cash, which they would never see.  But if the Treasury had to pay less in legal aid as a result and given that so much restrained cash goes un-forfeited (because of an acquittal or procedural mismanagement etc) it would seem that it is better if the Treasury saves on legal aid rather than the pipe dream of getting in lots of seized cash from criminals (£1.6 Billion is current un-recovered).  HMG's pious Minister said that they were not comfortable with lawyers being paid with the suspected proceeds of crime - it seems it is far better for lawyers to be paid with the proceeds of hard earned tax instead - what utter nonsense!  Let's hope some of the argument sticks and this change is made in the Commons.

Meanwhile the amendment which I flagged up here ended up as set out below (withdrawn to fight another day); it includes the flirtatious line about a distinguished QC, former wife of Sir Timothy Cassel QC (they had children called Bathsheba and Cosima) and born 1945.  During her leadership of the Countryside Alliance against the fox hunting ban she said:
 "I have had death threats. I stick them on the fridge. I think that's the best place for them." 

Clinton-Davis is a solicitor born in 1928:

Lord Clinton-Davis: I have learned so much today. I did not know that the noble Baroness, Lady Mallalieu, had been at the Bar for 40 years. I always thought she was 40.


Amendment 82ZD (in substitution for Amendment 86)
Moved by Lord Thomas of Gresford
82ZD: Schedule 1, page 136, line 34, at end insert-
"Appeals where court or tribunal certifies complex point etc.
(1) Civil legal services provided in relation to an appeal to the Upper Tribunal, the Senior Courts or the Supreme Court where the relevant court or tribunal certifies that-
(a) the appeal raises a complex issue of law or an issue of fact of exceptional complexity (in which case the certificate must identify the issue),
(b) the matter is one of significant wider public interest (in which case the certificate must identify that interest), or
(c) there is some other compelling reason why the proper conduct of the appeal requires the provision of civil legal services (in which case the certificate must set out the reason).
(2) Rules of procedure applicable to the relevant court or tribunal may make provision about certificates under this paragraph."
Lord Thomas of Gresford: My Lords, the amendment deals with appeals where a court or tribunal certifies a complex point of law. The Judges' Council, in response to the original consultation document, stressed the importance of continued funding for competent lawyers in meritorious cases. The problem is to identify which are the meritorious cases. Its response stated:
"Appeals before the Court of Appeal or the Supreme Court have to get through a demanding permission filter, frequently involve issues of difficulty and importance and may lead to the laying down of binding principles of broad application-a fortiori in the case of 'second' appeals to the Court of Appeal, which are subject to even stricter criteria requiring the appeal to raise an important point of principle or practice or that there is some other compelling reason why the appeal should be heard. References to the European Court of Justice relate to a difficult area of law and are made only where the answer is unclear. In appeals and references of this nature, the court ought to be given all possible assistance through professional advocacy. There should be no further cut-back in the availability of legal aid for such cases. The possibility of applying under the funding scheme for excluded cases is not a satisfactory answer, both because the scheme will be very limited in scope and because the very process of applying under the scheme is bound to be complicated and dissuasive".


24 Jan 2012 : Column 971
Appeals are not only about the individual case before the court or tribunal; they often change the law, and make new law and law that is binding on later cases. There is a powerful public interest that both sides of the case are properly argued. It is the court or tribunal itself that is best placed to decide whether to trigger the operation of an appeal by issuing a certificate. The concept of exceptional funding under Clause 9 is excessively narrow in its scope, and I will be returning to that later. This amendment ensures that such cases remain, where appropriate, within the scope of legal aid and would retain the possibility of legal aid when the appeal is on a matter of significant wider public interest or there is some other compelling reason why legal services are required. I beg to move.
6 pm
Lord Carlile of Berriew: My Lords, I too support the amendment. When my noble and learned friend responds to this debate, it would be helpful if he would explain the relationship between the types of issues covered in the amendment and Clause 9. If he and the Government believe that there is nothing in the amendment that is not in fact or in law covered by Clause 9, it would be helpful if he would say so. I respectfully suggest that it would be better for these very important decisions to be made by judges and that we should avoid a potentially unnecessary layer of satellite litigation through judicial review of decisions of the director of civil legal aid. I suggest to my noble and learned friend that it is better that judges rather than an official determine whether there should be legal aid.
I remind my noble and learned friend that the paradigm of the English claimant is the man on the Clapham omnibus, who may be coming to court with a very ordinary dispute. My noble and learned friend will recall, as a distinguished Scots lawyer, that one of the most important cases ever decided in the civil law in the United Kingdom related to a snail in a Scottish ginger beer bottle. Another of the most important cases in the common law arose from a carbolic smoke ball. One of the most important, if not the most important, cases in administrative law arose from the administrative arrangements for a cinema-a picture house-in Wednesbury in the Midlands. More recently, an extremely important case that led to a change in policy arose from a disabled person seeking guidance on her end-of-life care. That last one might have passed the test which I understand to be applied by Clause 9, but I believe that all four of those cases should in appropriate, means-tested circumstances be the recipients of legal aid and that the means test should be applied rather lightly if the outcome of the case has great importance in setting new precedent and our understanding of the law. In brief, I suggest to my noble and learned friend that the court is better placed than the director of civil legal aid to determine the importance of an issue in the panoply of precedent that the courts set.
Lord Pannick: My Lords, I, too, support the amendment for all the reasons set out by the noble Lords, Lord Thomas of Gresford and Lord Carlile of Berriew. I add one further factor. The criteria set out 

24 Jan 2012 : Column 972
in this amendment are so tightly defined that it is highly probable that in any case falling within those criteria, where one party is not legally represented, the tribunal or the court-particularly the Appeal Court-would consider it wholly inappropriate to determine the issue before it without requesting the Attorney-General to appoint what used to be known as an amicus curiae, now friend of the court, at public expense. It is much more desirable, with that public expense, for the individual to be represented rather than to have his or her case presented through a friend of the court. Again, the saving is entirely illusory.
Baroness Mallalieu: I also support the amendment. Who do the Government propose should prepare and conduct appeals that fall into the category of either complexity or public importance in the absence of legal aid, but which will not make the cut under Clause 9 exceptional?
Unless damages are involved, conditional fee agreements will not begin to kick in. If there are qualified solicitors or barristers who have the time, the inclination and the financial ability to take on pro bono cases of complexity, I suspect that they are pretty thin on the ground and, following on from what the noble and learned Lord, Lord Goldsmith, said in the previous debate, that they are likely to be even more scarce after the cuts kick in. I am afraid that the answer will be: either pay or do it yourself. Having been at the Bar for 40 years, I would not wish to prepare my own appeal, and certainly not if it was complex.
First, I would have to discover the relevant forms-whatever they are-which must be completed and filed with strict time limits. It may be necessary to obtain transcripts of the earlier proceedings, but from where, how and who will pay for them? Bundles of exhibits correctly paginated and in sufficient numbers would have to be prepared and lodged with the court and the other side. Written skeleton arguments would have to be prepared and exchanged, and a list of authorities-the reports of the earlier cases that will be relied on-will have to be compiled and given to the court and the other side as well.
How on earth is a lay man supposed to do all that without proper advice and legal assistance, let alone argue a legal case of complexity in court? An "exceptional case" must surely include consideration of the interests of justice. Proposed new sub-paragraph (1)(c) in the amendment, which permits legal services where the court or the tribunal certifies that there is some,
    "compelling reason why the proper conduct of the appeal requires the provision of civil legal",
aid, brings in just that factor that is currently missing.
If the amendment or at the very least something like it does not go into the ultimate legislation, I fear that the result will be: if you cannot afford to pay, you cannot appeal. That undermines one of our essential constitutional principles of equality before the law, which I cannot believe the noble and learned Lord or the Government wish.
Lord Clinton-Davis: I have learned so much today. I did not know that the noble Baroness, Lady Mallalieu, had been at the Bar for 40 years. I always thought she was 40.


24 Jan 2012 : Column 973
The amendment is self-evidently sensible. I hope that the Government will realise that it is important for the public that the points made here are expressed. We are talking about,
    "a complex issue of law ... wider public interest ... some other compelling reason why the proper conduct of the appeal requires the provision of civil legal services".
I hope that the Minister will say that on reflection the amendment will be embodied in the provisions that the Government are prepared to make on Report or later. I thank the noble Lord for raising these important issues, which are critical not only for lawyers but for the public.
Lord Bach: My Lords, I will be very brief. We on the Front Bench support the amendment unreservedly. I will make three points. Given that these cases address complex or novel points of law, they are clearly beyond the ability of the average litigant in person-and, if she is to be believed, even of my noble friend Lady Mallalieu, although I am not sure about that.
Secondly, such cases are the lifeblood of our legal system. They give it its unique character and ensure that it is kept in line with evolving social mores and values, and with extranational jurisprudential developments. They are a crucial part of our legal system. Thirdly, a failure to guarantee that such cases can be heard would be a complete failure of any regime purporting to protect the needs of the average litigant.
Perhaps I may repeat the question asked by the noble Lord, Lord Carlile. Are these cases covered by the exceptional cases regime in Clause 9? If they are, under the terms of the amendment, I would be very grateful if the noble and learned Lord would say that on the record. I will go no further than to thank the noble Lord, Lord Thomas of Gresford, for the very thoughtfully crafted amendment that we commend to the House.
Lord Wallace of Tankerness: My Lords, I, too, thank my noble friend Lord Thomas of Gresford for tabling the amendment. It would bring into scope any appeal to the Upper Tribunal and appellate courts where a relevant court or tribunal has certified, for example, that the case raises a complex issue of law or is a matter of significant wider public interest. It is important to note that this would broaden the existing scope of civil legal aid, as well as bring into scope a range of cases that we intend no longer to fund. The amendment extends the legal aid scheme beyond its existing bounds by, for example, allowing legal aid-albeit subject to the relevant court certifying one of the matters listed in the amendment-for advocacy in the Upper Tribunal on welfare benefit matters, or on business cases before the Supreme Court.
Further, Clause 9 ensures that in any individual case where it would be a breach of Article 6 of the European Convention on Human Rights to withhold legal aid, funding will be provided. Both my noble friend Lord Carlile and the noble Lord, Lord Bach, asked whether the amendment merely replicated what was in Clause 9. I will put on the record that it does not, in specific respects that I will explain later. It is the case, however, that in deciding whether the withholding 

24 Jan 2012 : Column 974
of legal aid would breach Article 6, the director of legal aid casework must consider the complexity of the issues and the importance of the matter at stake. This addresses the point made by the noble Baroness, Lady Mallalieu. The ability of the applicant to present their own case is a relevant factor, along with other relevant circumstances. Therefore, in cases where Article 6 is engaged, the exceptional funding scheme we have proposed will include taking into consideration the complexity of each individual case considered under Clause 9.
6.15 pm
As my noble friend Lord Carlile indicated, each case will depend on its own facts and circumstances. I remember my first ever tort lecture, when the lecturer suggested that the snail in the ginger beer bottle was perhaps one of the cleaner things in a Paisley café in 1929. As my noble and learned friend Lord Fraser of Carmyllie has just reminded me, it was never proved whether the snail ever existed. Cases of Wednesbury judicial review, as we discussed on numerous occasions today, fall within Schedule 1.
One area of distinction is that the amendment also seeks to bring into scope any case which is certified to be of "significant wider public interest". Under the current legal aid scheme there is a rule that allows any excluded case-other than a business case-to be brought back into scope if it is of significant wider public interest. It is not our intention to include such a rule in the future scheme created by the Bill. This is because we do not consider that the presence of this factor should constitute an automatic entitlement to publicly funded legal services, particularly where an area of law has been excluded because it is considered insufficiently important to merit public funding, because there are alternative sources of funding or because the procedure is simple enough that litigants can present their case without assistance.
Nevertheless, I reassure the Committee that funding for tribunals and appeals is not being withdrawn altogether. We have focused our limited resources on the highest priority cases in the Upper Tribunal and appellate courts, such as those concerning detained mental patients, special educational needs appeals, and discrimination. Where a case is in scope, it is our intention that the public interest will continue to be a relevant feature in the merits criteria created under Clause 10, thus allowing this to be taken into account in the funding decision.
I will combine that with my comments about the extent of Clause 9, which we will shortly debate. I have indicated that it does not cover everything, but clearly there is an overlap where the director of legal aid casework will be able to consider issues such as the complexity of a case and other factors. With that assurance, I hope that my noble friend will withdraw his amendment.
Lord Thomas of Gresford: My Lords, I do not intend to go into the complexities of proof in a Scottish court; it has always seemed something of a haar to me. I am grateful to all noble Lords who spoke in the debate. I will stress two points from the speeches 

24 Jan 2012 : Column 975
that we heard. My noble friend Lord Carlile pointed out that under Clause 9 it is the director of legal aid who will determine whether, in exceptional cases, legal aid should be granted. I cannot imagine any director who would have in his mind the full scope of the issues that can arise in appeals against decisions from tribunals and courts. I would have thought that the Government would have welcomed, as a safeguard, the fact that civil legal services will not be provided unless there is a certificate expressly stating why legal aid should be granted in the case. That will be an advantage, rather than leaving it to the director of legal aid, whose decision may well be challenged by way of judicial review. Surely satellite litigation is the one thing that we want to avoid when we pass the Bill.
The other point that I will stress follows from what was said by the noble Baroness, Lady Mallalieu, who outlined all the steps that must be taken in every appeal: the complicated preparation of schedules, skeleton arguments and documents that some of us are familiar with. As she said, it would be quite impossible for any individual to conduct an appeal, given all the background work that has to be done. As the noble Lord, Lord Pannick, said, the amendment is tightly drawn. I am disappointed with the response of my noble and learned friend. I hope that I will be able to pursue the matter with him afterwards and come back to it at a later stage. I beg leave to withdraw the amendment.
Amendment 82ZD, in substitution for Amendment 86, withdrawn.
Amendments 82A to 82D not moved.
Amendments 83 to 86 had been retabled as Amendments 82ZA to 82ZD.
Amendments 87 to 89 not moved.

Tuesday 24 January 2012

Major change to constitution.....who noticed? Who cared?

I was wondering about the Fixed Term Parliaments Bill and have only just noticed that it received Royal Assent on 15th Sept last year....strange how nobody takes any notice of big changes to our constitution, which pass through Parliament unnoticed. I posted on this many moons ago here. Essentially the ancient power of the Crown to dissolve Parliament (usually de facto exercised by the PM) at will has been replaced by an automatic dissolution and general election every 5 years. Far more interesting than this however are the provisions pursuant to which HMG can be brought down and replaced on a general election. The convention was that HMG falls on a vote of no confidence by a simple majority of the House of Commons. Not any more - now should there be such a vote, the Act gives HMG 14 days in which to avoid a dissolution by obtaining a vote of confidence by simple majority. Alternatively a dissolution can be obtained by a vote for an early election securing 2/3rds of total votes of all MPSs. In other words the power to topple HMG by a simple majority vote in the H of C has been abolished and HMG has secured the protection of having to loose two votes of simple majority in a 2 week period or loose the confidence of 2/3rds of the Commons. Why does HMG need such protection? Because HMG cannot relly on a Commons majority vested in the party discipline of a single party.  In other words this coalition Govt has protected itself with this Act. This is an exceptional example of our need for an entrenched constitution - the elected dictatorship has embedded itself with this Act without the need to bother itself with a constitutional amendment such as you might find in most liberal democracies. It always surprising me that such self-interested violence can be done to our constitutional arrangements without anybody really noticing or caring.......

Tuesday 17 January 2012

An interesting idea....

I see that these four fine Lords (Save for Phillips (a solicitor) they are Lib Dem QCs and Dep High Court Judges - Carlile is the HMG reviewer of terrorism legislation and MacDonald the former DPP and Helena Kennedy's first pupil and soon to be Warden of Wadham College, Oxford.  Thomas is married to Baroness Walmsley) want to amend the Legal Aid Bill passing nosily through the House of Lords to effectively give the senior appellate courts and tribunals the power to force civil legal aid to be granted to a party to a complex issue of law or fact that is of significant wider public interest or where there is some other compelling reason why legal aid should be granted. Imagine the fun such judges would have granting legal aid in controversial cases against HMG where without it, the executive would not be properly challenged by competent lawyers....and for that reason alone, this does not have a cat in the proverbial's chance of success....still an excellent idea....

LORD THOMAS OF GRESFORD
LORD CARLILE OF BERRIEW
LORD PHILLIPS OF SUDBURY
LORD MACDONALD OF RIVER GLAVEN

[In substitution for Amendment 86]

82ZD

Page 136, line 34, at end insert—“Appeals where court or tribunal certifies complex point etc.

(1) Civil legal services provided in relation to an appeal to the Upper Tribunal, the Senior Courts or the Supreme Court where the relevant court or tribunal certifies that—

(a) the appeal raises a complex issue of law or an issue of fact of exceptional complexity (in which case the certificate must identify the issue),

(b) the matter is one of significant wider public interest (in which case the certificate must identify that interest), or

(c) there is some other compelling reason why the proper conduct of the appeal requires the provision of civil legal services (in which case the certificate must set out the reason).

(2) Rules of procedure applicable to the relevant court or tribunal may make provision about certificates under this paragraph.

Monday 16 January 2012

New Doctors' disciplinary tribunal gets Chair

Following Dame Janet's powerful Shipman Report, HMG removed the GMC's adjudicatory powers over Doctors and vested them in a new state Tribunal- The Office of the Health Professions Adjudicator (OHPA) was born but never got going; it was put to the flames in the bonfire of the quangos last year and the GMC had to fill the breach with a new in- house quango of its own - The Medical Professions Tribunal Service was created - MPTS - funded by Drs rather than tax payers.....well now it has a Chairman -HHJ David Pearl- an academic (Professor at UEA) rather than lawyer - he has led the Immigration Appeal Tribunal as we'll as the Care Standards Tribunal whilst moonlighting on the Judical Appointments Comission as well as the Judicial College. MPTS gets started this Summer with promises of smaller, shorter and more efficient Tribunals...which the GMC has been promising for decades....fingers crossed......Read about it all here.

Thursday 12 January 2012

Update on Chief Coroner...

I think what Mr Djanogly meant to say was "I don't have a clue about when the Chief Coroner will be appointed, ask the Lord Chief Justice...."  Still his answers don't appear to encourage the notion that we will have a CC any time soon......


Chief Coroner

Robert Flello: To ask the Secretary of State for Justice by what date he expects to appoint the Chief Coroner. [87471]
Mr Djanogly: The Lord Chief Justice is responsible for appointing the chief coroner under schedule 8 to the Coroners and Justice Act 2009. We are continuing to discuss the matter, including timescales, with the Lord Chief Justice.
Mr Jim Murphy: To ask the Secretary of State for Justice what recent discussions he has had with (a) his ministerial colleagues and (b) the senior judiciary on the appointment of a Chief Coroner. [87686]
Mr Djanogly: The Lord Chancellor and Secretary of State for Justice, my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), and I have discussed the appointment of a Chief Coroner with the Lord Chief Justice in recent weeks. We have not, however, had any discussions with ministerial colleagues on this issue.
Mr Jim Murphy: To ask the Secretary of State for Justice (1) when he expects (a) to announce the appointment of a Chief Coroner and (b) the Chief Coroner to take-up his or her post; [87688]
(2) when he plans to announce who will be appointed as a Chief Coroner. [87764]
Mr Djanogly: The Lord Chief Justice is responsible for appointing the Chief Coroner under schedule 8 to the Coroners and Justice Act 2009. We are continuing to discuss this matter, including timescales, with the Lord Chief Justice.
20 Dec 2011 : Column 1128W
Mr Jim Murphy: To ask the Secretary of State for Justice whether he plans to meet bereavement organisations to discuss the appointment of a Chief Coroner; and when such meetings will take place. [87690]
Mr Djanogly: Ministry of Justice officials plan to meet bereavement organisations in the new year to discuss implementation of the coroner reforms in the Coroners and Justice Act 2009. However, under schedule 8 to the Act, the appointment of the Chief Coroner is a matter for the Lord Chief Justice, following consultation with the Lord Chancellor.
Mr Jim Murphy: To ask the Secretary of State for Justice whether he proposes that the Chief Coroner will be a High Court judge. [87767]
Mr Djanogly: Under Schedule 8 to the Coroners and Justice Act 2009 the Chief Coroner must be either a High Court judge or a Circuit judge. Appoin